TRIAL BY MEDIA: FREE

SPEECH V. FAIR TRIAL

Submitted by- Rajat Chopra

Semester-X, Section-A
Roll no.- 113

Submitted to- Mrs. Shraddha B. Rajput

Faculty, Media and Law

HIDAYATULLAH NATIONAL LAW UNIVERSITY

ATAL NAGAR, NEW RAIPUR, CHHATTISGARH
 ACKNOWLEDGEMENT

I would like to express my gratitude to Mrs. Shraddha B. Rajput, Faculty, Media and Law who
helped in accomplishment of this project. She has helped at every step by guiding my research,
suggesting ways to make the project more interesting and better researched. I sincerely thank
sir for her valuable support and guidance.

I also thank library staff for the cooperation in making available the online material through
HNLU Remote Access.

RAJAT CHOPRA

SEMESTER-X, Roll no.-113

Section-A

1
 TABLE OF CONTENT
INTRODUCTION ................................................................................................................... 4
INDIAN CONSTITUTION, CONTEMPT OF COURT & PRESS .................................... 7

POSTPONEMENT OF PUBLICATION BY COURT ...................................................... 16

RECOMMENDATIONS FOR AMENDING CONTEMPT OF COURTS ACT, 1971.. 22

CONCLUSION ...................................................................................................................... 23

REFERENCES ...................................................................................................................... 25

2
 Statement of Problem

i. Complications regarding Free Speech and Fair Trial under the Constitution of India and
Contempt of Court Act, 1971.

Research Question

i. Whether media trial by Television i.e., news channels or by print media i.e., newspaper have
detrimental impact on the suspects, accused, witnesses and on Judges. ii. Whether the
provisions of the Constitution of India and Contempt of Courts Act, 1971 which imposes
reasonable restrictions on freedom of speech are valid or not.
iii. Whether immunity can be granted to publications by media houses even if they
prejudicially interfere with the administration of justice.
iv. Whether publications regarding suspects or accused be regulated.
v. Whether postponement of publications by Court is substantial risk of prejudice.

Research Objective

i. To comprehensively analyse the provisions dealing with Free Speech and Fair Trial
under Constitution of India and the Contempt of Court Act, 1971.

Research Methodology

Research to be done with the help of statutes which includes - Constitution of India, Contempt
of Court Act, 1971 etc, various Research papers and Research articles.

3
 INTRODUCTION

These days due to wide-range of user base of the Internet, television services, and print media
the whole pattern of how news is to be presented or broadcasted has changed and such
publications are in one way or another is likely to have negative impact on suspects in a case,
accused, witnesses and Judges (who hear that particular case) , and also on the administration
of justice and so more on the general public. What we are talking about here is “Trial by
Media”.

Today due to the availability of internet the influence of media – print, television has penetrated
deep into the Indian society. And the amount of publicity a suspect or accused receives can be
seen from the recent happenings e.g., case of death of Sushant Singh Rajput where actor Rhea
Chakraborty had gone through media trial and probably may also go behind bars 1.

Thus, with the coming of the internet, television, and print media the amount of publicity any
suspect or accused receives in the general public has reached shocking magnitude. Due to this
innocent people might be convicted due to bias or those people who are actually liable may be
acquitted or might receive a higher punishment than what they deserve. Also, there seems to
appear little restraint in media regarding matters of administration of criminal justice.

We are well aware that in democratic setup freedom of speech and expression is very important
which is provided under Art.19 2 . However, no right is absolute in any nations because
absoluteness may lead to the deterioration of situation of law and order as well as internal

1
Sonal Saigal, “Sushant Singh Rajput death probe, Rhea Chakraborty denied bail in NCB
case”, The Hindu, available at https://www.thehindu.com/news/cities/mumbai/sushant-
singhrajput-death-probe-ncb-arrests-rhea-chakraborty-in-drugs-case/article32552130.ece.
(last accessed 10 September 2020).
2
The Constitution of India Act, 1950.

4
security. That is why Art 19 itself provides for reasonable restriction on the right of speech and
expression.

Case of Mother Dairy Foods & Processing Ltd v. Zee Telefilms,3 rightly states the situation of
today’s media. It states present that in which public is interested rather than something which
is of public interest.

Not only suspects and accused, but even victims and witnesses suffer from excessive publicity
and this in turn leads to violation of their fundamental rights. Also, police are painted in bad
picture by the media- print and electronic. Moreover, once a crime is reported, News channels
shows that Police has no clue of the crime and blames all the State machinery for the same.

This leads to building of pressure on the police and that too on regular basis by telecasting the
same news again and again until a situation is reached where police is forced to protect their
reputation. Under such pressure, police come up with story that they have nabbed the accused
and also, that he has confessed. And once the confession is made public by police and later, by
news channels, the future of the suspect is sealed.

The glorying e.g. of such situation is the case of Nupur Talwar V. Central Bureau of
Investigation and Another 4, popularly known as Noida double murder case or Aarushi-Hemraj
murder case5.

However, according to principle of criminal jurisprudence, accused is presumed to be innocent

until proven guilty in a Court of law.

3
AIR 2005 Delhi 195.
4
(2012) 11 SCC 465.
5
Aniruddha Ghosal, Kaunain Sheriff M, “Aarushi Talwar murder case: Key evidences that
caught attention”, Indian Express, Available at
https://indianexpress.com/article/india/aarushitalwar-murder-case-rajesh-nupur-talwar-
hemraj-noida-cbi-key-evidences-that-night-at-flat-l32-4900539/. (last accessed 10 September
2020).

5
Moreover, Art. 19(1)(a) 6 provides for freedom of speech and expression and Art. 19(2) 7
provides for reasonable restrictions to be imposed by state for various matters including
‘Contempt of Court’.

For dealing with the matters of “Contempt” legislature has drafted “The Contempt of Courts
Acts, 1971”. According to Sec. 2(c)(iii) 8 criminal contempt means if publications deals with
interfere with the administration of justice. And if in order to curb such interference if the
provisions of Contempt of Courts Act,1971 impose reasonable restrictions on Art.19(1)(a) i.e.,
right to freedom of speech and expression, such restrictions would be valid.

However, Sec.39 deals with innocent publication, which states that person will not be guilty of
contempt either Civil or Criminal, if proceedings were not pending at the time of publication,
i.e., if by the date of publication, a charge sheet is not filed in court or if summons or warrant
are not issued by court of law. Such a publications would be contempt of court only if a
proceeding were actually pending i.e. if charge sheet has been filed or a challan has been issued
the Court of Law on or before the date of publication of the material.

Now the questions which arises are:

a) Whether this can be allowed under Constitution of India.

b) Whether publications are to be regulated from the date the crime comes to light or after
the arrest of the accused or from the date on which warrant is issued.

Supreme Court of India and even House of Lords has accepted that such media publications
may affect Judges subconsciously. Their decision we will look in the course of this paper. And
this can be seen at the stage of bail i.e., granting or refusing or at the stage of trial.

However, SC in Surendra Mohanty v. State of Orissa,10 held that filing of a FIR or issuing of
a challan could not be the preliminary point of a criminal suit. Because of this judgment, a bias

6
The Constitution of India Act, 1950.
7
Ibid.
8
The Contempt of Courts Acts, 1971.
9
Ibid.
10
AIR 1961 SC.

6
publication made after the issuance of challan or filing of the FIR gained protection from law
of contempt.

Later, Supreme Court of India overruled the above decision in A.K. Gopalan v. Noordeen,11
and held that any biased publication made after ‘arrest’ of an accused will be contempt of
Court. And this continues to be the law of the land as far as Constitution of India and the
Contempt of Courts Acts, 1971 is concerned.

The 24-hour rule- After a suspect is arrested, he/she comes within the ‘care’ and protection of
the Court as he has to be produced before the Court within 24 hours. In India, this right is given
under Art. 22(2)12 which states protection against arrest and detention in certain cases.

Also, the Supreme Court in case of Maneka Gandhi v. Union of India 13, has transformed the
law as it stood before 1978 and held that ‘procedure established by law’ in Art. 21 must be just,
fair and reasonable.

Apart from the above-mentioned situation, there is also a need to maintain an equilibrium
between the right of freedom of speech and expression of the media houses, on the one end and
the right of due process of the suspect and accused, on the other. However, Art 19(1)(a), 19(2),
Art 21 and Art 1414 can play an important role in bringing such equilibrium.

11
1969 (2) SCC 734.
12
The Constitution of India Act, 1950.
13
AIR 1978 SC 597.
14
The Constitution of India Act, 1950.

7
INDIAN CONSTITUTION, CONTEMPT OF COURT & PRESS

The Constitution of India in Part III does not specifically mention the freedom of the print
media or of the electronic media i.e., the freedom of press. But these rights under Article 19
(1)(a)15 are part of the ‘Freedom of speech and expression’. However, the right is subject to
‘reasonable restrictions’ which are provided under Art.19(2) of Constitution of India.

The article is as follows: “Article 19- Protection of certain rights regarding freedom of speech,
etc.— (1) All citizens shall have the right— (a)to freedom of speech and expression; (2)
Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent
the State from making any law, in so far as such law imposes reasonable restrictions on the
exercise of the right conferred by the said sub-clause in the interests of the sovereignty and
integrity of India, the security of the State, friendly relations with foreign States, public order,
decency or morality or in relation to contempt of court, defamation or incitement to an
offence.”16

Moreover, Art.20 of Constitution of India provides for the protection in respect of conviction
for offences. Clause 3 of Art.20 is very important as it provides for right of accused against
self-incrimination i.e., according to which an accused can’t be compelled to be a witness
against himself.

15
The Constitution of India Act, 1950.
16
The Constitution of India Act, 1950, Art. 19.

8
Another important provision of Constitution of India is Art. 21 which deals with right to life
and personal liberty. It provides that “No person shall be deprived of his life or personal liberty
except according to procedure established by law” 17.

In the same line Art. 22(2) of Constitution of India is also Important it provides that every
person who is arrested to be produced to the nearest magistrate within 24 hrs of such arrest
excluding the journey time.

Moreover, the Supreme Court in Maneka Gandhi v. Union of India 18, has interpreted the words
“according to procedure established by law” in Art 21 of Constitution of India as the procedure
which is just, fair and reasonable not arbitrary or without merit.

Moreover, Supreme Court of India in Life Insurance Corporation of India v. Manubhai D

Shah19, has stated that the words “freedom of speech and expression” in Article 19(1)(a) of
Constitution of India means the right to express one’s own opinions freely, either in writing or
through speech or by printing, or via electronic media or in any other form.

In Romesh Thapar v. State of Madras 20, it was held that the freedom of speech and expression
includes freedom of one’s ideas as well as publication and circulation of those ideas.

Supreme Court in Hamdard Dawakhana v. Union of India 21 , again expanded the right of
freedom of speech and expression and stated that it includes the right to acquire and impart
ideas about matters relating to common public interest.

However, Supreme Court in State of Maharashtra v. Rajendra Jawanmal Gandhi 22, has held
that trial by print media or electronic media i.e., trial by media is against constitution mandate
and can lead to miscarriage of justice. It also observed that for the same a judge needs to be on
its guard against such type of media trials and the pressure thereof.

17
The Constitution of India Act, 1950, Art. 21.
18
AIR 1978 SC 597.
19
1992 (3) SCC 637.
20
AIR 1950 SC 124.
21
AIR 1965 SC 1167.
22
1997 (8) SCC 386.

9
Now, moving towards Contempt of Courts Act, 1971, ss. 2 and 3 are important for our study.
Section 2(c)23 defines ‘Criminal Contempt’ which means the publication of any matter or the
doing of any act which-

1) Scandalises or tends to lower authority of any court; or

2) Prejudice or interfere with course of judicial proceedings; or
3) Interfere or obstructs the administration of justice;

However, Section 3 24 , deals with the publication and distribution of matter which is not
considered contempt. According to this it is no contempt if publication, is made by publisher
who at the time of making such publication had no reasonable grounds to believe that the
proceedings either criminal or civil are pending.

The Supreme Court of India is a ‘court of record’25 i.e., it is a court were judicial proceedings
are registered in perpetuality and also such a court has the power to punish for its contempt.
The Supreme Court of India exercises this power to punish for acts which tends to interfere
with the administration of justice. As already told, contempt of court can be of two types26:

a) Civil Contempt27- it means wilful disobedience of orders, judgment, directions of Court.

b) Criminal Contempt2526- it means publication of any material which lowers the authority of
any court.

For e.g. recently Supreme Court, in case of Amicus Curiae v. Prashant Bhusan and Another29
dealt with the issue that whether the tweets made by Prashant Bhusan against Chief Justice of
India S.A. Bobde and the role of the court in the last six years is Contempt of Court or not.27

23
The Contempt of Courts Act, 1971.
24
The Contempt of Courts Act, 1971.
25
The Contempt of Courts Act, 1971, Sec.2 (c).
26
SCC OnLine SC 635.
27
Krishnadas Rajagopal, “Prashant Bhushan held guilty of contempt for tweets against CJI”,
The Hindu, Available at, https://www.thehindu.com/news/national/prashant-bhushan-
heldguilty-of-contempt-for-tweets-against-cji/article32351999.ece. (last accessed 10
September 2020).

10
The Supreme Court held Prashant Bhushan guilty under Contempt of Courts Act, 1971 for
scandalising the court and was liable to pay a fine of Re. 1 and if fine is not paid he has to face
imprisonment up to 3 months and also will be debarred from practicing in Supreme Court of
India for a period of 3 years. 28

Apart from this the Supreme Court has clarified that what constitute as Contempt of Court. In
many of its pronouncement some of them are as follows:

Pritam Pal v. High Court of Madhya Pradesh,29 it is contempt if an attempt is made to affect
the mind of the Judge in his or her favour and also to interfere in performance of their duty.

Also, in another case it was held that wilful disobedience of Court’s order, writ or direction is
also Contempt of Court.30

Another very important case is that of M/s. Shorilal & Sons v. Delhi Development Authority, 31
in this case Supreme Court Ordered the Delhi Development Authority for setting up of a
committee of inquiry to look into allegations made in allotment of plots under Naraina
Warehousing Scheme. The Delhi Development Authority didn’t constitute the committee and
Court held that it was contempt on part Delhi Development Authority for violation of order of
Court. However, later court gave one more chance to Delhi Development Authority.

In Vineet Kumar Mathur v. Union of India,32 the water of Gomti river due to discharge of
effluents was polluted by the distillery of a company. The Supreme Court of India directed the
management of company to eliminate insufficiencies in the waste treatment plant by a certain
time. The management of the company didn’t comply with the direction issued of the Court

28
Krishnadas Rajagopal, “Pay ₹1 fine by September 15 or face simple imprisonment for 3
months: Supreme Court to Prashant Bhushan”, The Hindu, Available at,
https://www.thehindu.com/news/national/pay-re-1-fine-by-september-15-or-face-
simpleimprisonment-for-3-months-supreme-court-to-prashant-bhushan/article32484970.ece.
(Last accessed 10 September 2020).
29
AIR 1992 SC 904.
30
Rajiv Choudhary v. Jagdish Narain Khanna, (1996) 1 SCC 508.
31
AIR 1995 SC 1084.
32
(1996) 7 SCC 714.

11
and kept on carrying on with its activities. The Supreme Court ruled that defilement of earlier
direction which were issued by the it was deliberate and pre-planned on part of the management
of the company. The Court therefore imposed a fine of Rs. 5 lacs on the company the amount
of which was utilised for treatment of Gomti River.

In Hira Lal Dixit v. State of Uttar Pradesh,33 it was observed by Supreme Court of India that
actual interference is not necessary with the administration of justice for contempt proceedings.
It is sufficient if the offending act or publication in any way interfere with administration of
justice. If there are any implications which are offensive or derogatory to the dignity of the
court and are also at the same time undermine confidence of the general public in judiciary, the
act would amount to Contempt of Court.

In C.K. Daphtary v. O.P. Gupta,34 the Supreme Court held that after a case is decided any
unfair and severe criticism of the judgment would be Contempt under Contempt of Courts Act.
However, any fair, genuine, legitimate, reasonable and moderate criticism of the Court, or of
the conduct of a Judge maybe permissible.

Under Sec.1535, in case of criminal contempt, the Court can take cognizance in three ways.

1. On its own motion i.e., Suo Motu. This is what happened in Prashant Bhushan Case. 36 or 2.
On the recommendation of the Attorney-General of India or Solicitor-General of India. or
3. By any other person but with the consensus of the Attorney-General of India.

33
AIR 1954 56 743.
34
AIR 1971 SC 1132.
35
The Contempt of Courts Act, 1971.
36
Krishnadas Rajagopal, “Prashant Bhushan held guilty of contempt for tweets against CJI”,
The Hindu, Available at, https://www.thehindu.com/news/national/prashant-bhushan-
heldguilty-of-contempt-for-tweets-against-cji/article32351999.ece. (last accessed 10
September 2020).

12
However, what will happen if any of the above refuses to give consent. The same issue is dealt
in case of P.N. Duda v. P.N. Shivshankar,3738 it was held in this case that if any person wants
to initiate proceedings regarding contempt of court or file a suit for Contempt, then he must
first have the written consent of either the Attorney-General of India or of the Solicitor-
General. And if the consent is refused the matter of refusal can be brought in the Court for
Judicial review. Another way can be that court takes the action om its own.

Now comes the Right of press-In, New York Times v. Sullivan,41 it was stated that the main
purpose of the free press is to create a fourth organ outside the government which is
independent and which keeps a check on the other three organs of State which are- legislature,
Executive and Judiciary. The importance of press is that it is an antidote to the abusive power
of government officials and also a means to keep the elected officials answerable and
accountable to the general public.

In India, freedom of the press is not directly mentioned under Constitution of India. However,
it has been evolved from the Art.19(1)(a) 39 which deals with freedom of speech and expression.

Thus, being only an ensuing right, which is derived from Art.19(1)(a), 40 the standing of
freedom of the press in India is no different than that of citizens. In Printers (Mysore) Ltd. v.
Assistant Commercial Tax Officer,41 the Supreme Court of India has held that though freedom
of the press is not expressly given in Constitution, However, it can be implied from Art.19(1)(a)
of the Constitution.

Now, a question arises whether a publication by media can ‘unconsciously’ effect Judges?

The American view is that media publication can’t influence judges. While the English view
is that media publication may not consciously impact judges but unconsciously, they can. It
seems that the English view has been accepted in India. This can be seen from the case of P.C.
Sen (in Re), 42 in which the Supreme Court Observed: “No distinction is, in our judgment,

37
AIR 1988 SC 1211.
38
U.S. 254.
39
The Constitution of India Act, 1950.
40
The Constitution of India Act, 1950.
41
(1994) 2 SCC 434.
42
AIR 1970 SC 1821.

13
warranted that comment on a pending case or abuse of a party may amount to contempt when
the case is triable with the aid of a Jury and not when it is triable by a Judge or Judges.” 43 Thus,
in the above case it can be seen that Court accepts that judges are unconsciously effected.

Moreover, Supreme Court in Reliance Petrochemicals Ltd. vs. Proprietors of Indian Express,47
observed that right of Freedom of speech and expression under Constitution of India is not
absolute and also it is not same as that under American Constitution where in order to create
freedom of speech, the Constitution hardly meant to create a right by which Judges can be
influenced.

The Supreme Court has again retreated the same point in case of Union of India v. Naveen
Jindal,44 it held that US First Amendment is in absolute while the right under Article 19(1)(a)
of Constitution of India are restricted.

In another case of M.P. Lohia v. State of West Bengal,45 a woman committed suicide at her
house at where her parents live but the parents of the girl filed a case against in-laws and their
son-in-law under the Indian Penal Code, 1860, claiming that it was a case of dowry death. The
son-in-law i.e., the Husband of the women who committed suicide, later submitted a number
of documents to prove his wife suffering from schizophrenic psychotic.

Afterwards the parents of the woman also submitted documents to prove that this was a case
of dowry which was asked by their Son-in-law. Even before the trial could begin in the lower
court two articles were published in the magazine in a such a manner that only the allegations
made by the woman’s parents were made but no article was referred to the documents
submitted by the Son-in-law which states that the lady was suffering from schizophrenic
psychotic. The result was that lower court refused to grant bail.

The matter went to the Supreme Court which granted interim bail to the accused. The apex
court also severally criticised those two articles which only spoke of only one side of the story.

43
The Law Commission of India, Two Hundred Report, on ‘Trial by Media: Free Speech Vs.

Fair Trial Under Criminal Procedure, 1973 (2006).’ 47

1988(4) SCC 592.
44
2004(2) SCC 510.
45
2005(2) SCC 686.

14
And observed that, “Such type of articles which are written by media would definitely affect
the course of administration of justice.”46

In brief, it can be seen that the right of free speech and expression in US is very wide and
absolute and no restraint can be ordered against any publication is unless there is clear danger
to the right itself.

But in India, the situation is totally different as the right of free speech and expression is
restricted by Article 19(2) of Constitution of India. For e.g. if court treats an article as criminal
contempt under Section 2(c), 47 and concludes that it interferes with administration of justice
then if restrictions are imposed upon it by court will be considered as reasonable under Article
19(2) of Constitution of India.

46
The Law Commission of India, Two Hundred Report, on ‘Trial by Media: Free Speech Vs.
Fair Trial Under Criminal Procedure, 1973 (2006) p. 58.
47
The Contempt of Courts Acts, 1971.

15
 POSTPONEMENT OF PUBLICATION BY COURT

Another important issue in the area of trail by media is of postponing of publications to prevent
preconception to a suspect or an accused in an awaiting or ongoing criminal or civil case.
Moreover, the punishment prescribed under Sec 3 48 is not always sufficient nor does it in any
way aid the accused or suspect against the trail by media.

The question which now arises is whether such prejudicial publications can be by order of court
be postponed, and also what will be the nature of such order i.e., general or specific.

Case of United Kingdom: Sec. 4(2)49 provides that to avoid substantial risk of prejudice to the
administration of justice the publication may be postponed for such period as court thinks
necessary. The above section is applicable to both civil as well as criminal cases.

48
The Contempt of Courts Act, 1971.
49
The Contempt of Courts Act, 1981.

16
Now, what is the meaning of the words substantial risk of prejudice in the above section. In
Attorney General v. Newsgroup Newspapers 50 the court talked about double test to avoid
substantial risk of prejudice.

1. First, there was a risk the proceedings will be affected.

2. Second, if the proceedings are affected, the result will be serious.

Moreover, in Ex parte the Telegraph Group and Others,51 the court stated that in order to
decide whether the suppression order is valid or not. It is important that the three-pronged test
is satisfied. The test talks about three questions. They are:

1. Whether broadcasting will lead to substantial risk of prejudice.

2. Whether direction issued under Sec 4(2) 52 can eliminate the risk.
3. Is it necessary the directions have to be issued?

If the above three tests are satisfied the publication may be stopped. However, the words in
Sec. 4(2) are defected according to various commission. According to New South Wales Law

Reform Commission report on “Contempt by Publication” 53 it was specified that the U.K. law
is applied incoherently, regularly and needlessly. Therefore, it is left for deliberation that
whether the words ‘substantial risk of prejudice’ be used in provision relating to postponement
orders.

Furthermore, there is another report on the same topic by the Australian Law Reform
Commission title of the report is “Contempt and Prejudice to Jury i.e., Report No.35, 1987” 54
in this report the commission suggested that the Court ought to have authority to postpone
publication of a media report of any part of proceedings or of whole proceedings, if it is wholly

50
1986 (2) AllER 833.
51
2001(1) WLR 1983.
52
The Contempt of Courts Act, 1981.
53
The Law Commission of India, Two Hundred Report, on ‘Trial by Media: Free Speech Vs.
Fair Trial Under Criminal Procedure, 1973 (2006) p. 191.
54
The Law Commission of India, Two Hundred Report, on ‘Trial by Media: Free Speech Vs.
Fair Trial Under Criminal Procedure, 1973 (2006) p. 171.

17
satisfied that such media publication would give rise to a substantial risk that the fair trial of
an accused for an criminal or civil offence might be prejudiced because of the influence which
such publication may have on judges.

Moreover, the commission also recommended that there should be ban on committal
proceedings by media reports.

Another important question which arises now is whether the court has inherent power to
authorize ‘postponement order’ with regard to publication.

In Independent Publishing Co Ltd v. Attorney General of Trinidad & Tobago, 55 it was held by
the Privy Council that there is no inherent power to authorize ‘postponement order’ and also
the power to postpone publication must be through legislation.

However, the above view is not applicable in India as recently seen from the case of Sudarshan
News T.V.56 However, order in Sudarshan news doesn’t relate to genuine case of where the trail
is ongoing on the other hand it relates to the right of media to broadcast a particular show.
However, it can be seen from this case that even if trial is not ongoing the SC still passed the
postponement orders.

Moreover, in another case of Actor Rakul Preet singh 57 where she approached Delhi High
Court so that an order can be issued to Press Council of India and Centre government to
safeguard that the mass media do not show any programme or print any article linking Rhea
Chakraborty case with Rakul.

Moreover, if we look at the case of Express Newspapers vs. Union of India 58, in this Supreme
Court exclusively deals with the right of freedom of speech and of press but stated that like
other rights it is also not absolute.

55
(2004) UKPC 26.
56
The Wire, Available at https://thewire.in/media/sudarshan-news-show-cause-mib-
responseupsc-jihad. (last accessed 30 September 2020).
57
NDTV, Available at https://www.ndtv.com/india-news/actor-rakul-preet-singh-
movesdelhi-high-court-over-media-linking-her-to-drug-case-2301614. (last accessed 30
September 2020).
58
AIR 1959 SC 12.

18
Following are the media publications which are prejudicial to an accused or suspect:

1. Publication relating to the character of suspect or accused:

a) In R v. O’Dogherty (1848) it was stated that observations by media which are calculatedly
made to stimulate feelings of resentment towards a suspect or accused who is going under
a trial amounts to contempt of court.
b) In the celebrated case of R v. Parke59, in this case the suspect was arrested on ground of
forgery, the Star agency published an article that the suspect had earlier also committed a
crime of forgery and was convicted. However, Judge Wills held that such an article is
prejudicial to the suspect.
c) Again, in Gisborne Herald Co. Ltd. vs. Solicitor General,60 it was stated that past criminal
record causes prejudice and such evidence should be treated as inadmissible as it affects
adjudicator subconsciously.
d) In another case of R v. Davis,61 in this case a woman was prosecuted as she abandoned her
child and later there was publication in the newspaper that the accused previously also was
find guilty of fraud more than once, the court held that such publication are highly
prejudicial to the suspect.

Again, in case of Solicitor General v. Henry and News Group Newspapers Ltd,66 the suspect
was accused of a crime that he had committed person robbery and following which there was
an article in the newspaper that the accused previously was convicted for crime of rape and
the U.K. Court held this publication contempt as the said publication causes substantial risk of
prejudice and thus a fine of 15,000 Pounds was imposed on the newspaper.
e) In A.G of New South Wales v. Truth and Sportsman Ltd., 6263 in this case a newspaper
published an article which described the accused as notorious criminal as he was charged
for keeping a firearm without possessing a licence. The publication was held to be in
contempt by the court.

59
(1903) (2) KB 432.
60
1995(3) NLLR 563.
61
(1906) 2 KB 32.
62
(1957) 75 WN (NSW) 70.
63
NZLR 45.

19
f) Again, in R v. Regal Press Pty Ltd (1972), the newspaper published an article that the
accused, who was charged with offence of drink and drive, was convicted for the offence
of murder in the past. The court held the newspaper was in contempt.
g) In Solicitor General v. Wellington Newspapers Ltd,68 in this case John Giles was charged
with the murder of police constable. However, three newspaper one of them was Gisborne
Herald published the previous conviction of the suspect. Court held this was contempt by
the three newspaper.
2. Publication of Confessions- it is already clear that the confession to police is not admissible
in court of law. However, still publication of confession before trial begins or during trial
are treated to be highly prejudicial to the suspect and therefore indirectly affects the Court’s
neutrality and amount to contempt.
a) In R v. Clarke, ex p Crippen, 64 the suspect Crippen arrested in Canada but was not officially
charged for the crime, However, Daily Chronicle published in England, that “the Suspect
(Crippen) had killed his wife in front of witnesses and admitted the same”. The court treated
such publication as contempt.
b) Moreover, in case of AG (NSW) v. Dean,65 police personnel was held guilty of contempt of
court. As during a media conference after the arrest of the accused in a murder case, the

police officer answered a reporter’s question which indirectly meant that accused confessed
about the crime to the police.
3. Publication which comment or reflects upon the merits of the case- it is the most extreme
form of trial by media. As in this a newspaper takes over the function of the Court without
the safeguards of procedure, right to cross-examine etc., i.e., there is a moot trial by media
and they don’t follow the principle of Natural justice. Such types of publications prejudge
the facts and influence all the parties in a case including Court, witnesses and others.
However, it is, permitted to publish the exact facts of case and nature of charge with which
accused is charged with. 66
a) In R v. Bolam (1949), in this case a newspaper Daily Mirror described one Mr. Haigh as a

64
(1910) 103 LT 636.
65
(1990) 20 NSWLR 650.
66
The Law Commission of India, Two Hundred Report, on ‘Trial by Media: Free Speech Vs.
Fair Trial Under Criminal Procedure, 1973 (2006) p. 201.

20
 ‘vampire’ and also published that he was murderer. Moreover, the publication also gave a
list which contains the name of victims. Court fined the owners of Daily Mirror and also
the editor was sent to jail.
b) Moreover, in R v. Odham’s Press Ltd,67 in this case the accused was in business of brothel
and he was managing the same. However, a newspaper publication described that the
accused that he was in the foul business of managing street women. The court held that the
newspaper was in contempt.
4. Photographs- not only publication of photograph in newspaper or T.V. interferes with the
process of identification of the suspect, but there is also a probability that such publication
may also give colour of guilt to the suspect. 68
a) In AG v. News Group Newspapers Ltd (1984), during a trial of the accused, a photograph
of the accused was published by Sun Newspaper who was charged with the offence of
causing injuries to his child. The caption of the news report was “Baby was blinded by
Dad”. However, the accused was held not guilty, and Sun Newspaper was fined 5000
Pounds.69

b) In Attorney General v. Tonks75, it was stated that publication of photos of suspect before
the trial begins and there is likely an issue of identification of suspect than the same would
amount to contempt.
5. Police activities- we have already discussed that confession to police is not admissible. And
also, publication of such confession is treated as contempt. 70In case of R v. Pacini,71 a radio
station broadcasted an interview of the detective who was involved with the arrest of the
suspect. Moreover, the broadcasting was done when the suspect was waiting for his trial,

67
1957 (1) QB 73.
68
The Law Commission of India, Two Hundred Report, on ‘Trial by Media: Free Speech Vs.
Fair Trial Under Criminal Procedure, 1973 (2006) p. 202.
69
Ibid.
70
The Law Commission of India, Two Hundred Report, on ‘Trial by Media: Free Speech Vs.
Fair Trial Under Criminal Procedure, 1973 (2006) p. 205.
71
(1956) VLR 544.

21
 and on the basis of interview it was implied that the accused was guilty. The court held the
radio station has committed contempt.
6. Imputation of innocence- a direct imputation of innocence of the accused is also termed by
the court as contempt. The same has been explained through the case of R v. Castro
Onslow’s and Whelley’s 72 in this case at a public gathering two M.P stated that the
suspect was not guilty of the offence but he was the victim of a conspiracy. The court held
both of them guilty of contempt.
7. Publication which creates atmosphere of prejudice- the same can be explained through the
case of R v. Hutchison73, in this case a news channel in its report implied a charge against
the accused which was graver than the actual charge was held contempt.
The Indian case on the same point is of M.P. Lohia vs. State of West Bengal,74 in this case
Supreme Court criticized a one-sided article in a newspaper which alleged that deceased
(wife) was a dowry victim and also the newspaper recorded only the version of parents of
deceased.
RECOMMENDATIONS FOR AMENDING CONTEMPT OF COURTS ACT, 1971

1. To begin with it is needed to extend the meaning of term “publication” so that it can include
publication from every form of Media i.e., electronic media, print media, radio broadcast
and television broadcast and the publication on any of the internet platforms. The same can
be done by insertion of an Explanation clause under section 2 75 of the main act.
2. The other amendment to the act is related to reference of contempt by Lower Courts.
According to section 10 76 the Lower Courts needs to make a reference to the High Court
for its contempt. This process provided under the above section may lead to scandalizing
the lower courts and also such publication interferes with administration of justice as
provided under sec. 2(c)(ii) and (iii) 77 of the said act. Moreover, the process of reference
by the Lower Courts to the High Court is also time consuming. Thus, a new Sec. 10A may

72
(1873) L.R 9 Q.B 219.
73
1936 (2) All ER 1514.
74
AIR 2005 SC 790.
75
The Contempt of Courts Act, 1981.
76
Ibid.
77
Ibid.

22
 be added and according to which as far as criminal contempt of Lower Courts is concerned
under sec. 2(c)(ii) and (iii) 78 the need of reference from Lower Courts to High Court will
not be required. Rather the High Court can be approached directly in such cases.
3. Another amendment to the act can be insertion of postponement orders i.e., the courts need
to be authorised to pass postponement orders. This means to avoid a bias to a suspect in a
pending criminal case then such publication can be postponed. Moreover, the requirement
of passing of postponement orders should also be there and it is to be shown that there is a
serious risk of prejudice. Thus, a new section 14A is to inserted and any breach of a section
14A shall be made contempt under sec. 14B of the act 79.
4. The most important recommendation is that the curriculum for journalism need to have a
degree course on law. And through this course journalist may know what are the rights of
victims, rights of accused/suspect, what are contempt proceedings, law of defamation and
various freedom available to citizens under Constitution of India and human rights.

CONCLUSION

The subject of ‘trial by media’ or media broadcasting or publication during the trial period or
during the ‘pre-trial’ period is related to Article 19(1)(a)80 deals with ‘freedom of speech and
expression’, and Article 19(2) 81 which talks about reasonable restriction on these rights. Thus,
question is about balancing the freedom of speech and expression on the one hand and
unjustified interference with administration of justice under the Contempt of Courts Act, 1971.
And the balancing ought to be done without curbing the rights of either victim or accused under
Article 21 of the Constitution of India for a fair trial.

78
Ibid.
79
Ibid.
80
The Constitution of India Act, 1950.
81
Ibid.

23
Moreover, for the purpose of contempt of Court, the fundamental right of freedom of speech
and expression can, by law, be restricted and the same is provided under Art.19(2) of
Constitution of India.

However, the same can be done by a parliamentary legislation and the legislation passed must
impose reasonable restrictions on such right. And if the legislation passed by parliament
imposes restriction which are unreasonable, then the same will be null and void as that will be
against right of free speech which is contained in Art. 19.82

Moreover, it has already been mentioned that the media whether print or electronic cannot
exercise unlimited liberty in publication of information regarding a suspect/accused in a
criminal case and thereby, creates biases in the mind of general public and the more, so on
judges who will decide on the guilt of the suspect/accused.

This is done because unlimited media right will lead to miscarriage of justice and will be against
the right of fair hearing. Moreover, if the person is ultimately held not guilty (innocent), even
then the image of accused will be lost in the society because of such media publication.
Therefore, it is important that false information or reporting by media became a criminal
offence.

Moreover, not only unwarranted publicity in the print and electronic media about a suspect or
an accused during pre-trial stages prejudices a fair hearing but such media publication can also
create other problems of privacy rights. Also, public figures, such as politician, cricketer, actors

etc., are more vulnerable and helpless in the media. As can be seen from the case of Rhea
Chakraborty.83

Not only this media may cause problems to witnesses as well. when the identity of witnesses
is revealed, there is risk that witnesses may come under pressure from both the accused or his

82
Ibid.
83
Sonal Saigal, “Sushant Singh Rajput death probe, Rhea Chakraborty denied bail in NCB
case”, The Hindu, available at https://www.thehindu.com/news/cities/mumbai/sushant-
singhrajput-death-probe-ncb-arrests-rhea-chakraborty-in-drugs-case/article32552130.ece.
(last accessed 10 September 2020).

24
acquaintances and in some cases even from police. So, this is the reason that at the early stage
of case, the witnesses want to withdraw. Thus, it is important that witness is protected from
such pressure. Otherwise, above pressure may even cause the witness turning hostile which
may lead to causing injustice either to victim or the suspect.

Sometimes media may even conduct parallel investigation with police which may lead to
building of pressure on the police machinery. And this can lead to innocent being put behind
bars by police due to pressure by media either print or electronic.

Moreover, the media can also put pressure on judges as well. And this can be clearly seen from
Ayodhya Ram janmabhoomi case or M Siddiq (Dead) Through Legal Representatives V.
Mahant Suresh Das & Ors.,84 where it took judiciary more than 2 decade to decide the case.

Thus, it is very important that an equilibrium is maintained between right of free speech of
media on the one hand and the right of due process of the suspect/accused on the other.

REFERENCES

1. The Constitution of India Act, 1950.

2. The Contempt of Courts Acts, 1971.
3. M.P. Jain, Indian Constitution Law, Lexis Nexis, New Delhi, 2016.
4. J.N. Pandey, Constitutional law of India, Central Law Agency, 2017.
5. The Law Commission of India, Two Hundred Report, on ‘Trial by Media: Free Speech
Vs. Fair Trial, 2006.

84
(2020) 1 SCC 1.

25
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